Central Radio Company Inc. v. City of Norfolk

776 F.3d 229, 2015 WL 151611
CourtCourt of Appeals for the Fourth Circuit
DecidedJanuary 13, 2015
Docket13-1996, 13-1997
StatusPublished
Cited by2 cases

This text of 776 F.3d 229 (Central Radio Company Inc. v. City of Norfolk) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Central Radio Company Inc. v. City of Norfolk, 776 F.3d 229, 2015 WL 151611 (4th Cir. 2015).

Opinions

Affirmed by published opinion. Judge KEENAN wrote the majority opinion, in which Judge AGEE joined. Judge GREGORY wrote a separate dissenting opinion.

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider whether the district court erred in granting summary judgment to the City of Norfolk on claims that the City’s sign ordinance violated the plaintiffs’ rights under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The plaintiffs, a radio manufacturing and repair business and two of its managers, asserted that the sign ordinance unconstitutionally exempted certain displays from regulation, effectuated a prior restraint on speech, and was selectively enforced in a discriminatory manner by zoning officials. Upon our review, we agree with the district court that the sign ordinance is a content-neutral restriction on speech that satisfies intermediate scrutiny, and we find no merit in the plaintiffs’ other constitutional challenges. Therefore, we affirm the district court’s judgment.

I.

A.

The City of Norfolk (the City) adopted a zoning ordinance that includes a chapter governing the placement and display of signs (the sign code). See Norfolk, Va., Code app. A § 16 (2012). The City enacted the sign code for several reasons, including to “enhance and protect the physical appearance of all areas of the city,” and to “reduce the distractions, obstructions and hazards to pedestrian and auto traffic caused by the excessive number, size or height, inappropriate types of illumination, indiscriminate placement or unsafe construction of signs.” Id. § 16-1.

The sign code applies to “any sign within the city which is visible from any street, sidewalk or public or private common open space.” Id. § 16-2. However, as defined in the ordinance, a “sign” does not include any “flag or emblem of any nation, organization of nations, state, city, or any religious organization,” or any “works of art which in no way identify or specifically relate to a product or service.” Id. § 2-3. Such exempted displays are not subject to regulation under the sign code.

[233]*233With respect to signs that are eligible for regulation, the sign code generally requires that individuals apply for a “sign certificate” verifying compliance with the sign code. Id. §§ 16-5.1, 16-5.3. Upon the filing of such an application, the City is required to issue a “sign certificate” if the proposed sign complies with the provisions that apply in the zoning district where the sign will be located. Id. §§ 16-5.4, 16-8.

In the “1-1” industrial zoning district in which plaintiff Central Radio Company Inc.’s (Central Radio) property is located, the ordinance provisions include restrictions on the size of signs. Id. § 16-8.3. The size restrictions vary depending on whether a sign is categorized as a “temporary sign,” which may be as lárge as 60 square feet, a “freestanding sign,” which may be as large as 75 square feet, or an “other than freestanding sign,” which may be as many square feet as the number of linear feet of building frontage facing a public street.1 Id. The City does not patrol its zoning districts for violations of size restrictions or other provisions of the sign code, but does inspect displays in response to complaints made by members of the public.

B.

The plaintiffs’ challenges to the City’s sign code relate to a protest of certain adverse action taken against Central Radio by the Norfolk Redevelopment and Housing Authority (NRHA). The NRHA is a chartered political subdivision of Virginia, and consists of an independent committee of seven members appointed by the Norfolk City Council. See Va.Code Ann. § 36^4.

In April 2010, the NRHA initiated condemnation proceedings against Central Radio and several other landowners, allegedly intending to take and transfer the various properties to Old Dominion University '(ODU). Central Radio and the other landowners successfully opposed the taking in state court. Although a trial court initially ruled in favor of the NRHA, that ruling was reversed on appeal by the Supreme Court of Virginia. PKO Ventures, LLC v. Norfolk Redevelopment & Hous. Autk, 286 Va. 174, 747 S.E.2d 826, 829-30 (2013) (holding that the NRHA lacked the statutory authority to acquire non-blighted property by eminent domain). Accordingly, the condemnation proceeding against Central Radio was dismissed. Norfolk Redevelopment & Hous. Auth. v. Central Radio Co., No. CL102965, 2014 WL 3672087 (Va.Cir.Ct. Apr. 15, 2014).

In March 2012,. while the appeal was pending in state court, Central Radio’s managers placed a 375-square-foot banner (the banner) on the side of Central Radio’s building facing Hampton Boulevard, a major, six-lane state highway. The banner depicted an American flag, Central Radio’s logo, a red circle with a slash across the words “Eminent Domain Abuse,” and the following message in rows of capital letters: “50 YEARS ON THIS STREET / 78 YEARS IN NORFOLK / 100 WORKERS / THREATENED BY / EMINENT DO[234]*234MAIN!”2 The plaintiffs intended that the banner “be visible for several blocks along Hampton Boulevard” and “make a statement about Central Radio’s fight with the NRHA,” which would constitute “a shout” rather than “a whisper.”

An employee of ODU complained about the banner to a City official, who notified the City’s zoning enforcement staff. After investigating the matter, a zoning official informed Central Radio’s managers that the banner violated the applicable size restrictions set forth in the sign code. At a later inspection, zoning officials noted that the plaintiffs had failed to bring the display into compliance with the sign code, and ultimately issued Central Radio citations for displaying an oversized sign and for failing to obtain a sign certificate before installing the sign.3

In May 2012, the plaintiffs initiated a civil action to enjoin the City from enforcing its sign code. The plaintiffs alleged that the sign code was unconstitutional because it subjected their display to size and location restrictions, but exempted certain “flag[s] or emblem[s]” and “works of art” from any similar limitations. The plaintiffs also alleged that the sign code’s provision requiring them to obtain a sign certificate before erecting a display effectuated an impermissible prior restraint on speech, and that the City selectively applied the sign code to the plaintiffs’ display in a discriminatory manner. In addition to requesting declaratory relief and nominal damages, the plaintiffs moved for a temporary restraining order and a preliminary injunction.

The district court denied the plaintiffs’ motions and, after discovery was completed, granted summary judgment in favor of the City. The court concluded that the provisions in the sign code exempting flags, emblems, and works of art were content-neutral. Applying intermediate scrutiny, the court held that the sign code was a constitutional exercise of the City’s regulatory authority. The court held that those exemptions were reasonably related to the City’s interests in promoting traffic safety and aesthetics, because such exempted displays “are less likely to distract drivers than signs” and “are commonly designed to be aesthetically pleasing.” In reaching this conclusion, the court also rejected the plaintiffs’ prior restraint and selective enforcement claims.

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Related

Central Radio Company Inc. v. City of Norfolk
811 F.3d 625 (Fourth Circuit, 2016)

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Bluebook (online)
776 F.3d 229, 2015 WL 151611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/central-radio-company-inc-v-city-of-norfolk-ca4-2015.